Delhi High Court
Sheetal Chauhan vs South Delhi Municipal ... on 8 August, 2018
$~52
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 113/2018
SHEETAL CHAUHAN
..... Appellant
Through: Mr Yogesh Kumar Dahiya and Mr
Joymoti Mize, Advocates.
Versus
SOUTH DELHI MUNICIPAL
CORPORATION & ANR ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 08.08.2018
CM No.31726-27/2018(exemption)
1. Allowed, subject to all just exceptions.
2. The application is disposed of.
RSA 113/2018 & C.M. Nos.31725/2018 (for condonation of 80
days delay in filing the appeal)
3. This Regular Second Appeal under Section 100 of the Code of
Civil Procedure, 1908 (CPC) impugns the judgment [dated
31st January, 2018 in RCA No.77/2017, CNR No.DLST01-007644-
2017 of the Court of the Additional District Judge (South District)
Saket Court Complex] of dismissal of the First Appeal under Section
96 of the CPC filed by the appellant against the judgment and decree
[dated 1st August, 2017 in CS SCJ No.84336/2016 of the Court of
the Senior Civil Judge (South)] of dismissal as not maintainable, of
the suit filed by the appellant/plaintiff for declaration that the demolition
carried out by the respondent No.1- South Delhi Municipal
Corporation with the assistance of respondent No.2 - SHO, Police
Station Mehrauli, was illegal and for permanent injunction
restraining them from carrying out demolition of any other
construction on the property of the appellant/ plaintiff, reasoning that
the suit was barred by Section 343(4) and Section 347A of the Delhi
Municipal Corporation Act, 1957 (DMC Act).
4. I have enquired from the counsel for the appellant/plaintiff
whether not the exclusive remedy of the appellant/plaintiff was to
approach the Appellate Tribunal, MCD and what is wrong with the
judgment of the Suit Court as affirmed by the First Appellate Court.
5. The counsel for the appellant/plaintiff states that leave be
granted to the appellant/plaintiff to approach the Appellate Tribunal,
MCD. It is contended that though the appellant/plaintiff has already
preferred two appeals before the Appellate Tribunal, MCD but not
with respect to the subject matter of the suit.
6. However, counsel is unable to state as to what is the subject
matter of the suit qua which no appeal has been preferred.
7. I have further enquired from the counsel for the
appellant/plaintiff as to under which provision of law, the
appellant/plaintiff requires liberty of this Court to approach the
Appellate Tribunal, MCD.
8. Counsel for the appellant/plaintiff is unable to cite any
provision also.
9. Counsel for the appellant/plaintiff states that his challenge to
the order of demolition is on the ground of demolition being contrary
to the provisions of the National Capital Territory of Delhi Laws
(Special Provisions) Second Act, 2011 (NCT) Act and on other
grounds.
10. However, on enquiry whether not it is open to the
appellant/plaintiff to take the said plea before the Appellate Tribunal,
MCD, again no answer is forthcoming. It is, however, contended
that Section 347B of the DMC Act which lays down the orders under
the Act which have been made appealable, does not provide for an
appeal against an order in violation of the provisions of the NCT Act.
11 Once the order of demolition has been made appealable,
Section 347B of the Act does not require the grounds of illegality to
be specified and it is in the domain and jurisdiction of the Appellate
Tribunal, MCD to adjudge the illegality urged with respect to the
order.
12. This appeal is entirely misconceived, lest raised any substantial
question of law.
13. The appellant/plaintiff, if entitled in law to approach the
Appellate Tribunal, MCD, shall be entitled to.
14. Dismissed.
RAJIV SAHAI ENDLAW, J.
AUGUST 08, 2018
'Sn'..
